[NCUC-DISCUSS] [Blog post] NCUC exerts policy leadership at ICANN 60 by Milton Mueller

[Renata Aquino Ribeiro]

Hello

Please see below a new blog post on NCUC website as result from
activities of NCUC Fellowship Program as well.

Thank you for the author, Milton Mueller, for this comprehensive
report of the meeting.

Posting on plain text, please see embedded links on the online version.

https://www.ncuc.org/2017/12/02/ncuc-exerts-policy-leadership-at-icann-60/

NCUC exerts policy leadership at ICANN 60

By Milton Mueller, Internet Governance Project, Georgia Institute of Technology

ICANN 60 showed that NCUC is playing an increasingly prominent role in
ICANN. In the past, we were mainly reacting to policy initiatives from
other stakeholder groups – usually proposing things we oppose. At this
meeting, we were setting an agenda and influencing the rest of the
environment in several areas. This blog will cover only those areas in
which I was able to directly observe what was going on. There were
several other NCUC activities at ICANN 60 that I was not able to
observe (notably I missed most of the GNSO Council meetings and most
of the geonames meeetings).

Outreach

A joint outreach meeting of NCUC and At Large on Saturday was a very
productive event. It drew a large audience, including many of the new
fellows and supported travelers. ICANN is drawing many new people into
its processes, but many of them are confused by the complex
organizational structures within ICANN, and some have vague or
inaccurate ideas about what ICANN does. NCUC Chair Farzaneh Badii
clarified that NCUC, as part of the GNSO, is focused exclusively on
policy development for generic domain names, whereas AL can offer
advice about anything. She also made it clear that NCUC is for
noncommercial interests within ICANN, whereas At Large membership can
include both commercial and noncommercial end users. Some differences
in the attitudes of NCUC and At Large emerged during the discussions,
particularly around Whois/privacy issues, where NCUC takes more of a
rights-based approach and At Large positions are driven more by those
who want to regulate users.

This meeting also featured a discussion between me and the current and
future heads of ICANN’s Security and Stability Advisory Committee,
Patrik Faltstrom and Rod Rasmussen, on the topic of “DNS abuse.” We
discussed what was the line between forms of abuse that involve
domains only, and abusive or illegal content, which is outside of
ICANN’s mission. We may have succeeded in making the SSAC people more
sensitive to this distinction.

Jurisdiction

NCUC was also prominent in discussions of the jurisdiction issue. Led
by Internet Governance Project colleagues Farzaneh Badii and myself,
but with participation and support from NCUC members Claudio Lucena
and Tatiana Tropina, we pushed for mitigating the effect of OFAC
sanctions on ICANN’s neutrality as global domain administrator.
Recommendations to commit ICANN to obtaining OFAC waivers whenever
needed, and to push for a general OFAC license, were accepted by the
subgroup. Opposition to the subgroup’s report developed within GAC,
however. The problem, as Brazil’s GAC representative made clear, was
not that they were “against” the OFAC-related recommendations. They
are “very useful, very helpful,” he said. They feared that if they
support the final report they are condoning the idea that the
discussion of jurisdiction is over. Brazil and other countries still
want to discuss further immunities. In meetings with the GAC, NCUC
played a role in smoothing over the dissent by making it clear that we
are not against continued discussion of immunities and the subgroup
report was modified to allow this continued discussion.

ICANN and content regulation

NCUC actors made a major push against pressures to turn ICANN towards
content regulation. Just before the meeting, NCUC member Internet
Governance Project released a paper on registrar’s terms of service
and their power to suspend domains based on their content. Member
organization Electronic Frontier Foundation continued its campaign
asking registrars not to “take up the censor’s pen.” These papers were
discussed at the NCUC and NCSG meetings on constituency day and helped
to inform members about the issue.

We continued the pressure in our meeting with SSAC representatives, as
noted above, and in our meeting with the ICANN board. Content
regulation via ICANN was featured in one of the questions we asked of
the board. We received a very strong and reassuring response from
board member Becky Burr, which, due to its importance and the need to
keep a record of the commitment, I copy from the transcript below:

BECKY BURR: And the Board has resolved, …to be very clear in
everything we do to articulate why we think what we’re doing is
consistent with our mission. We want to put that out there to start a
conversation, a dialogue with the community to make sure … that we all
have mission at the top of mind. The purpose of that is to make sure
that we collectively have a very clear understanding of what ICANN’s
mission is, and we are consciously thinking about whether we are
acting within ICANN’s mission at all times. That, really, to me, is a
critical piece of making sure that everything we do goes back to
ICANN’s mission, which, obviously, clearly excludes content control.

MUELLER: Well, I think that’s as satisfactory an answer as I could
expect Becky to give. And I do think that there are going to be some
of these borderline questions. The thing that I like that I’m hearing
is, going forward, a PIC (registry Public Internet Commitment) that
strays into [content regulation] would not be considered something
that ICANN would have to enforce through its compliance. Can we get a
clear statement on it? New PICs?

BECKY BURR: Well, I think it’s pretty clear that…that was the
understanding of the community that new PICs going forward have to be
— have to fall within ICANN’s mission.

MUELLER: Okay. And then the registry itself might offer PICs — or even
they wouldn’t be PICs, just policies that would allow them to regulate
content within their own top-level domain. But ICANN wouldn’t be
responsible for enforcing those commitments, right?

BECKY BURR: No. So, for example, a number of registries are working
with organizations on different ways of resolving disputes about
copyright-related issues. Those are not within ICANN’s remit. ICANN is
not involved in those. Those are private arrangements, private dispute
resolution arrangements.

MILTON MUELLER: Thank you.

MARKUS KUMMER: So it seems we’re on the same page here, which is good.

We also had a good meeting with the Registrars Stakeholder Group where
we discussed the “registrar neutrality” ideas contained in the IGP
paper. While there was general agreement about the need to detach
domain administration from content regulation, it was clear that we
will have trouble getting registrars to reduce discretion available to
them. While sympathetic to neutrality, registrars would want carve
outs for when they need to protect themselves for liability reasons.

The issue of domain abuse vs. illegal content came up again on a panel
about ICANN’s new Domain Abuse Activity Reporting data collection
process. GNSO Council member Tatiana Tropina participated in this
panel and reminded them of the need for due process and for not
conflating domain abuse with website content.

Whois/Privacy/RDS

We were also active in the never-ending Whois/privacy issue. Whois is
being re-branded as RDS (Registry Directory Services) but all the
issues are the same. In a Sunday meeting of the RDS working group,
NCUC members Stephanie Perrin, myself and Farzaneh Badii succeeded in
challenging a false premise that much of the early work of the group
has been based on, namely that the “purpose” of Whois can be derived
from a list of all of its uses by various interests. The anti-privacy
interests always approach the Whois purpose issue from this
standpoint. They assert that because they are currently using their
indiscriminate public access to personally identifiable information in
a certain way, that that use should be considered as one of the
“purposes” of Whois. NCUC advocates, on the other hand, noted that for
a data collector such as ICANN, the purpose of Whois relates only to
those functions ICANN needs the data for to perform specific purposes.
The purpose of Whois restricts what data is legitimately collected. If
the “purpose” of whois is to facilitate law enforcement, for example,
then registrars should be collecting and publishing passport or social
security numbers, as that would certainly make LEA’s job easier. But
that is in fact NOT ICANN’s purpose for collecting Whois data. By the
end of this meeting, we seem to have driven this point home, and
people in the RDS group seemed to better appreciate the important
distinction between “use cases” and “purpose” in data collection.
Whether that will affect the RDS group’s final recommendations remains
to be seen.